Study On The Application Of "Normal Business Buyer Rule"

Article 404 of the Civil Code elevates the "normal operation buyer rule" originally applicable to chattel floating mortgage into a general norm in the whole field of chattel mortgage,which is in line with the purpose of the establishment of mortgage guarantee system,in line with the requirements of the coordination of the real right of the Civil Code,and has a legitimate basis for promoting the sound development of commercial transactions and taking into account the balance of interests of all parties."Normal operation buyer rule" contains many ideas,such as efficiency,fairness,trust and so on.It is a necessary system arrangement for the development of commercial transactions.In essence,this rule is a special bona fide acquisition,that is,the assignee trusts the guarantor in good faith and agrees that the guarantor can sell the security in its normal business activities without burden,so the law allows the assignee to acquire the ownership of the security without burden.Because of the vagueness of the legal language,the possibility of abuse of the rule increases greatly when there is no clear application of the rule.There is a tripartite opposing interest mode,in which the mortgagee is in a relatively weak state.In order to prevent this rule from being arbitrarily applied and thus causing the interests of the mortgagee to be easily damaged,"normal operation of buyer rule" is taken as the research object.On the basis of explaining the concept and value of the "normal operation buyer rule",this paper sorts out the generation and development of the "normal operation buyer rule",extracts the main problems in the "normal operation buyer rule",and then draws on foreign laws to propose corresponding solutions to the problems.The four requirements of "normal business buyer rule" are reasonable price has been paid,chattel mortgage has been obtained,normal business activities,and the buyer is in good faith.There are still some shortcomings in the "normal operation of buyer rule" : First,the Property Law lacks specific provisions on the subjective elements of buyers,and the recognition rules for most of the price already paid are missing,but the Civil Code does not amend it.Secondly,the expansion of the system makes the mortgagee face the risk of security interest impairment,so it is necessary to construct the corresponding relief path under the existing system.Finally,some specific provisions of the constituent elements of the normal buyer rule are unreasonable,which makes the application difficult to judge.In order to make the "normal operation buyer rule" play a greater role in the field of commercial guarantee,the following suggestions are put forward for the application of the rule: First,in practice,we can pay attention to the judgment of the subjective elements of the buyer,distinguish the good faith of the buyer from the bona fide acquisition system of chattel,and exclude the subjective "bad faith" of the buyer.Secondly,by expanding the subrogation system of Article390 of the Civil Code,the mortgagee who assumes the risk due to this rule can be relieved.It is clear that the right of subrogation in property has the effect of legal pledge of creditor’s rights,which is the retention and extension of the mortgagee’s priority right to receive compensation from the proceeds obtained from the transfer of mortgaged property under the "normal business buyer rule".In the judgment,the extra compensatory liability is taken as the supplement of the right of subrogation.Third,the constitution of the buyer rule for normal operation is refined: the identification rule of the "majority of the price" already paid is unified,the definition of normal operation is broad,and it is clear that the price in the buyer’s "payment of reasonable consideration" has been paid when the mortgage right is pursued to the mortgagee.